A letter of appointment of a sole arbitrator is not a decision that can be appealed directly to the Swiss Federal Tribunal
Federal Tribunal Judgment 4A_146/2019 of June 6, 2019, A. v. WADA & B. Appeal against the letter of the CAS of 25 February 2019 (CAS 2018/A/5990)
The case involves a professional boxer (the Athlete), WADA and the Athlete’s national antidoping agency. WADA filed an appeal to the CAS against the federation’s tribunal decision and requested a three-member panel, reserving however its right to request a sole arbitrator if the Athlete failed to pay its share on the advance of costs. The Athlete did not pay his share of the advance of costs and the CAS decided to appoint a sole arbitrator, notwithstanding the wish of the Athlete to have a three-member panel.
The appointment of an arbitrator by an administrative body (in casu the CAS Court Office) is not a challengeable decision to the Swiss Federal Tribunal
Following the Athlete’s request of the reasons for the appointment of a sole arbitrator, the CAS answered that this decision was based on Art. R50 para. 1 and R54 of the CAS Code, according to which the CAS takes several factors into account, including the fact of whether the respondent has not paid its share of the advance of costs and within the granted time limit.
The letter to appoint a sole arbitrator was brought before the SFT alleging an incorrect constitution of the panel (Art. 190 (2) a PILA). The SFT repeated its jurisprudence on the decisions related to the challenge of an arbitrator, which cannot be appealed directly to the SFT but can only be attacked along with the final award (at 2.2). Even though there was a previous SFT judgment that had considered the issue of the number of arbitrators not as a mere procedural order but as a final decision (to the extent that it definitively settles the issue of composition of the tribunal), the SFT decided to clarify its jurisprudence and held that the appointment of a sole arbitrator by an administrative body does not constitute a challengeable decision to the SFT since it does not emanate from an arbitral tribunal.